On the first day of the Mike Duffy trial, both the prosecution and the defence made arguments that were damaging to Prime Minister Stephen Harper and his inner circle.

Crown Prosecutor Mark Holmes said, “Sen. Duffy was probably ineligible to sit in the Senate as a representative of Prince Edward Island.”

Holmes added that this trial will not decide that thorny constitutional question. 

But folks in the Prime Minister’s Office (PMO) must have collectively winced when they heard that assertion from a non-partisan public official.

The PMO had, it seems, made great efforts to establish that Duffy could be a Prince Edward Island resident for the purpose of representing that province in the Senate, but not for the Senate expense rules.

Duffy and his various lawyers make the opposite claim.

They argue that once Duffy was appointed Senator from Prince Edward Island, the former journalist automatically became a PEI resident in every sense of the word.

On Tuesday, Duffy’s criminal lawyer, Donald Bayne, intimated that the Prime Minister and his office, and the Conservative Senate leadership, saw things that way until Duffy’s PEI residency became a political embarrassment.

Then they turned on Duffy and decided to — in Bayne’s version — compel the PEI Senator to publicly “admit” he had made a mistake in claiming expenses for his Ottawa-area home.

In Duffy’s now famous words in the Senate chamber itself, the Prime Minister ordered him to: “Pay the money back!”

During his opening statement at the trial, Bayne even produced part of a police interview with Harper’s former Chief of Staff, Nigel Wright, in which the Bay Street multi-millionaire and one-time political wunderkind said: “We are basically forcing … somebody to repay money that they probably didn’t owe, and I wanted the prime minister to know that and be comfortable with that.”

Both sides make Harper look bad

So take your pick.

If the prosecution is right, the Prime Minister knowingly made an unconstitutional appointment to the Upper House.

If the defence is right, the Prime Minister’s Office and other senior Conservatives engaged in a scheme to whitewash a Senator’s politically embarrassing expense claims — claims which the Party leadership quite likely encouraged the Senator to make in the first place.

Some commentators have pointed out that Holmes’ assertion about the constitutionality, or lack thereof, of Duffy’s residency is naïve and beside the point.

Many senators do not actually reside in the places they represent, they say, especially senators from Quebec. The British North America (BNA) Act requires that Quebec senators reside not only in their home province, but in the specific part of the province — the electoral division — they represent. It is hard to imagine that all Quebec senators, now and in the past, have lived up to that tough requirement. 

Of course, nobody has ever sought to legally and constitutionally clarify the BNA Act’s residency requirement.

And Duffy and Pamela Wallin were certainly not the only Canadians appointed to represent provinces in which they did not live, at the time of their appointment.

Donald Bayne noted that Senator Carolyn Stewart Olsen, the Prime Minister’s former Press Secretary, did not live in New Brunswick when Harper named her to one of that province’s seats in the Upper House.

When the Duffy and Wallin mess broke, however, Stewart Olsen hastily relocated to her “home” province. Nobody has suggested bringing charges against her for travel and housing expenses she might have claimed prior to here precipitous move “home.”

As the trial continues we might find out more about the kind of thinking that went into the current Prime Minister’s many, and quite hasty, senatorial appointments.

The defence promises to reveal how the PMO and the Conservative Party “used” Duffy for partisan purposes — in the words of one reporter, as a “mascot.”

The prosecution, for its part, will have some pointed questions for witnesses such as Wright on the PMO’s thinking concerning the constitutional legality of appointing long time Ottawa denizen Duffy to represent far-away PEI in Parliament’s Upper House. 

Whether, in the end, Duffy is found not guilty or guilty, none of what happpens at this trial is likely to make the Prime Minister and his entourage look good. 


Photo: flickr/Stephen Harper

Karl Nerenberg

Karl Nerenberg joined rabble in 2011 to cover Canadian politics. He has worked as a journalist and filmmaker for many decades, including two and a half decades at CBC/Radio-Canada. Among his career highlights...